Livingston Educational Service Agency; Wayne- Westland Community Schools v. Xavier Becerra

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0111p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LIVINGSTON EDUCATIONAL SERVICE AGENCY; WAYNE-
WESTLAND COMMUNITY SCHOOLS,
Plaintiffs-Appellants,
v.
XAVIER BECERRA, in his official capacity as Secretary
of Health and Human Services; U.S. DEPARTMENT OF
HEALTH AND HUMAN SERVICES; JOOYEUN CHANG, in
her official capacity as Assistant Secretary and
Principal Deputy Assistant Secretary of the
Administration for Children and Families;
ADMINISTRATION FOR CHILDREN AND FAMILIES;
BERNADINE FUTRELL, in her official capacity as the
Director of the Office of Head Start,
Defendants-Appellees.
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No. 22-1257
On Motion for Injunction Pending Appeal.
United States District Court for the Eastern District of Michigan at Detroit;
No. 2:22-cv-10127—Nancy G. Edmunds, District Judge.
Decided and Filed: May 20, 2022
Before: CLAY, ROGERS, and STRANCH, Circuit Judges.
_________________
COUNSEL
ON MOTION FOR INJUNCTION PENDING APPEAL AND REPLY: Daniel R. Suhr,
LIBERTY JUSTICE CENTER, Chicago, Illinois, Amy E. Murphy, Rebecca L. Strauss,
MILLER JOHNSON, Grand Rapids, Michigan, for Appellants. ON RESPONSE: Alisa B.
Klein, Sarah J. Clark, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees.
>

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No. 22-1257 Livingston Educ. Serv., et al. v. Becerra, et al. Page 2
_________________
ORDER
_________________
This case concerns the COVID-19 vaccine mandate for Head Start program staff,
contractors, and volunteers imposed by an interim final rule of the Department of Health and
Human Services (“HHS”). See Vaccine and Mask Requirements To Mitigate the Spread of
COVID-19 in Head Start Programs, 86 Fed. Reg. 68,052 (Nov. 30, 2021). Head Start is a federal
program that funds early childhood education for low-income children and provides other
resources and education to the children’s families. See 42 U.S.C. § 9831. Plaintiffs Livingston
Educational Service Agency and Wayne-Westland Community Schools, both Head Start
grantees in Michigan, brought suit to challenge the interim final rule under the Administrative
Procedure Act, the Congressional Review Act, and several provisions of the United States
Constitution. The district court granted a temporary restraining order (“TRO”) but later denied a
preliminary injunction and dissolved the TRO. Plaintiffs appeal the denial of their motion for a
preliminary injunction. At issue here is plaintiffs’ motion for an injunction pending appeal.
The plaintiffs are not entitled to an injunction pending appeal because the plaintiffs have
not shown that they will likely prevail on the merits, as the district court persuasively explained
in its denial of the plaintiffs’ motion for a preliminary injunction. We adopt the reasoning of the
district court in that respect. See Livingston Educ. Serv. Agency v. Becerra, No. 22-CV-10127,
2022 WL 660793, at *4-8 (E.D. Mich. Mar. 4, 2022).
“We consider four factors when deciding whether to grant an injunction pending appeal:
(1) whether the applicant is likely to succeed on the merits of the appeal; (2) whether the
applicant will be irreparably harmed absent the injunction; (3) whether the injunction will injure
the other parties; and (4) whether the public interest favors an injunction.” Monclova Christian
Acad. v. Toledo-Lucas Cnty. Health Dep’t, 984 F.3d 477, 479 (6th Cir. 2020). In their motion
for an injunction pending appeal, the plaintiffs argue that they are likely to prevail on the merits
for two reasons: first, because HHS violated the Administrative Procedure Act when it issued the
vaccine requirement through an interim final rule instead of through notice-and-comment

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No. 22-1257 Livingston Educ. Serv., et al. v. Becerra, et al. Page 3
rulemaking, and second, because HHS does not have the statutory authority to enact a vaccine
requirement.
First, HHS likely did not violate the Administrative Procedure Act when it promulgated
the vaccine requirement through an interim final rule instead of notice-and-comment rulemaking.
HHS may use an interim final rule instead of notice-and-comment rulemaking “when the agency
for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary,
or contrary to the public interest.” 5 U.S.C. § 553(b)(B). The Supreme Court recently addressed
this issue in Biden v. Missouri and held that the Secretary of HHS was not required to use notice-
and-comment rulemaking to issue a vaccine requirement for the staff of Medicare and Medicaid
facilities. See 142 S. Ct. 647, 654 (2022) (per curiam). The Court concluded that “the
Secretary’s finding that accelerated promulgation of the rule in advance of the winter flu season
would significantly reduce COVID–19 infections, hospitalizations, and deaths . . . constitutes the
‘something specific’ . . . required to forgo notice and comment.” Id. Similarly, in this case the
Secretary made a specific finding that “[t]he Delta variant, which in the summer of 2021 became
the predominant SARS-CoV-2 strain in the United States, is more contagious—spreading twice
as fast—and results in more cases and hospitalizations for children.” 86 Fed. Reg. at 68,055.
The interim final rule also explained that “[Head Start staff] [b]eing fully vaccinated reduces risk
of the transmission of SARS-COV-2 from staff to children who are not yet eligible for the
vaccine and must be protected to minimize their exposure.” Id. The interim final rule contains
ample discussion of the evidence in support of a vaccine requirement and the Secretary’s
justifications for enacting the requirement. See generally 86 Fed. Reg. at 68,055-059. Given the
similarity between the interim final rule at issue here and the rule that the Supreme Court upheld
in Missouri, the plaintiffs are unlikely to prevail on their claim that the lack of notice-and-
comment rulemaking violated the Administrative Procedure Act.
Second, HHS likely has the statutory authority to issue a vaccine requirement for Head
Start program staff, contractors, and volunteers. The statute creating the Head Start program
gives the Secretary of HHS the power to promulgate regulations to promote the health and well-
being of the children in the program. The Head Start statute provides that the Secretary “shall
modify, as necessary, program performance standards by regulation applicable to Head Start

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No. 22-1257 Livingston Educ. Serv., et al. v. Becerra, et al. Page 4
agencies and programs,” including designated standards and “such other standards as the
Secretary finds to be appropriate.” 42 U.S.C. § 9836a(a)(1)(A), (E). In addition to that broad
grant of authority, the statute also specifically provides how the Secretary may remedy “health”
risks to children in the program. A “deficiency” is defined as “a systemic or substantial material
failure of an agency in an area of performance that the Secretary determines involves . . . a threat
to the health, safety, or civil rights of children or staff[.]” 42 U.S.C. § 9832(2)(A)(i) (emphasis
added). The statute gives the Secretary the power to remedy deficiencies, and in particular
provides that “if the Secretary finds that the deficiency threatens the health or safety of staff or
program participants,” the Secretary must “require the agency . . . to correct the deficiency
immediately[.]” 42 U.S.C. § 9836a(e)(1)(B)(i) (emphasis added). In Missouri, the Supreme
Court held that similar statutory language permitted HHS to promulgate a vaccine requirement
for the staff of Medicare and Medicaid facilities. The statute at issue in that case provided that
“the Secretary [may] impose conditions on the receipt of Medicaid and Medicare funds that ‘the
Secretary finds necessary in the interest of the health and safety of individuals who are furnished
services.’” 142 S. Ct. at 652 (citation omitted). The Court concluded that “[t]he rule thus fits
neatly within the language of the statute.” Id. The same is true here. The risk that unvaccinated
staff members could transmit a deadly disease to children in Head Start programs—who are
ineligible for the COVID-19 vaccine due to their young age—is plainly “a threat to the health” of
the children. See 42 U.S.C. § 9832(2)(A)(i).
The Supreme Court noted in Missouri that “the longstanding practice of Health and
Human Services” is relevant to this inquiry, see 142 S. Ct. at 652, and HHS has a history of
regulating the health of Head Start staff in order to protect the children in the program. The
previous version of 45 C.F.R. § 1302.93, which was in effect from November 2016 to November
2021, was titled “Staff health and wellness.” That regulation provided that:
A program must ensure each staff member has an initial health examination and a
periodic re-examination as recommended by their health care provider in
accordance with state, tribal, or local requirements, that include screeners or tests
for communicable diseases, as appropriate. The program must ensure staff do not,
because of communicable diseases, pose a significant risk to the health or safety
of others in the program that cannot be eliminated or reduced by reasonable
accommodation . . . .

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No. 22-1257 Livingston Educ. Serv., et al. v. Becerra, et al. Page 5
45 C.F.R. § 1302.93(a) (effective until November 2021). In the 1990s, HHS required that Head
Start staff receive screenings for tuberculosis. See 61 Fed. Reg. 57,186, 57,210, 57,223 (Nov. 5,
1996). Furthermore, since 2016 Head Start regulations have required programs to “comply with
state immunization enrollment and attendance requirements,” 45 C.F.R. § 1302.15(e), and
programs must evaluate whether newly-enrolled children comply with the “immunization
recommendations issued by the Centers for Disease Control and Prevention,” 45 C.F.R.
§ 1302.42(b)(1)(i). HHS’s history of regulating the health of Head Start children and staff
provides further evidence that the vaccine requirement does not exceed the agency’s statutory
authority.
Because the plaintiffs do not show a likelihood of prevailing on the merits, we do not
address the other factors that govern whether plaintiffs are entitled to an injunction pending
appeal. The motion for an injunction pending appeal is DENIED.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

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